Citation Nr: 0424468
Decision Date: 09/03/04 Archive Date: 09/15/04
DOCKET NO. 98-07 882 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUES
1. Entitlement to a compensable evaluation for bilateral
hearing loss.
2. Entitlement to an increased rating for the residuals of a
right knee patella and tibia fracture, currently evaluated as
10 percent disabling.
3. Entitlement to an increased rating for the residuals of a
left knee and leg injury, currently evaluated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant-Veteran
ATTORNEY FOR THE BOARD
Kristi Barlow, Counsel
INTRODUCTION
The veteran served on active duty from July 1970 to December
1974.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a March 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
New York, New York, which denied the benefits sought on
appeal. All other issues appealed from the March 1998 rating
decision were withdrawn by the veteran at his personal
hearing before the Board in March 2004 and, as such, are not
before the Board for adjudication.
The Board notes that the veteran inquired as to the status of
his claim of entitlement to service connection for a left
elbow disability in January 2004. This claim was denied as
not well-grounded in an August 1999 rating decision with
notice given to the veteran the following month. It does not
appear that the veteran's recent correspondence, which may be
interpreted as a request to reopen the claim, has been
addressed by the RO. As such, this matter is referred to the
RO for appropriate action.
The issues of entitlement to increased ratings for right knee
and left leg disabilities are addressed in the REMAND portion
of the decision below and are REMANDED to the RO via the
Appeals Management Center (AMC), in Washington, DC. VA will
notify the veteran if further action is required on his part.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. The veteran has a hearing loss in the right ear with a
Numeric Designation of II as per Table VI of the VA schedule
of ratings.
3. The veteran has a hearing loss in the left ear with a
Numeric Designation of I as per Table VI of the VA schedule
of ratings.
CONCLUSION OF LAW
Criteria for a compensable evaluation for bilateral hearing
loss have not been met. 38 U.S.C.A. § 1155 (West 2002);
38 C.F.R. §§ 4.1-4.16, 4.85, Diagnostic Code 6100 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Increased Ratings
Disability evaluations are determined by the application of
the schedule of ratings which is based on average impairment
of earning capacity. See 38 U.S.C.A. § 1155. Separate
diagnostic codes identify the various disabilities. Where
entitlement to compensation has been established and an
increase in the disability rating is at issue, the present
level of disability is of primary concern. See Francisco v.
Brown, 7 Vet. App. 55, 58 (1994).
Diagnostic Code 6100, sets out the criteria for evaluating
hearing impairment using puretone threshold averages and
speech discrimination scores. Numeric designations are
assigned based upon a mechanical use of tables found in
38 C.F.R. Section 4.85; there is no room for subjective
interpretation. Scores are simply matched against Table VI
to find the numeric designation, then the designations are
matched with Table VII to find the percentage evaluation to
be assigned for the hearing impairment. 38 C.F.R.
Section 4.86(a) allows for the use of either Table VI or
Table VIA in determining the appropriate numeric designation
when the puretone threshold at each of the four specified
frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels
or more. 38 C.F.R. Section 4.86(b) allows for the use of
either Table VI or Table VIA in determining the appropriate
numeric designation when the puretone threshold is 30
decibels or less at 1000 Hertz and 70 decibels or more at
2000 Hertz.
The record reflects that the veteran requested an increase in
disability rating for his bilateral hearing loss in January
1997 because he was evaluated by a VA audiologist and
determined to be a candidate for hearing aids. The results
of the January 1997 testing are as follows, with pure tone
thresholds recorded in decibels:
HERTZ
500
1000
2000
3000
4000
RIGHT
30
25
55
65
65
LEFT
35
25
25
65
60
Speech audiometry revealed speech recognition ability of 96
percent in the right ear and 100 percent in the left ear.
The veteran was determined to have mild to moderately-severe
sensorineural hearing loss bilaterally.
The veteran underwent VA audiometry examination in March 1997
and the testing resulted in the following:
HERTZ
500
1000
2000
3000
4000
RIGHT
25
25
55
70
60
LEFT
30
25
40
65
60
Speech audiometry revealed speech recognition ability of 80
percent in the right ear and 96 percent in the left ear. The
veteran was determined to have mild to moderately-severe
sensorineural hearing loss bilaterally.
The veteran underwent VA audiometry examination in January
1999 and the testing resulted in the following:
HERTZ
500
1000
2000
3000
4000
RIGHT
30
30
55
70
70
LEFT
40
35
45
60
50
Speech audiometry revealed speech recognition ability of 94
percent in each ear and the veteran was again determined to
have mild to moderately-severe sensorineural hearing loss
bilaterally.
And, the most recent VA audiometry examination was performed
in October 2003, with the testing resulting in the following:
HERTZ
500
1000
2000
3000
4000
RIGHT
30
40
70
70
70
LEFT
35
40
55
65
65
Speech audiometry revealed speech recognition ability of 92
percent in each ear. And again, he was determined to have
mild to moderately-severe sensorineural hearing loss
bilaterally.
The veteran testified before an RO hearing officer in August
1998 that he occasionally wore hearing aids, that he required
the use of the aids when he was placed in a situation with a
lot of background noise. The veteran testified before the
Board in March 2004 that he was able to hear without his
hearing aids, but could hear better with them. He stated
that he had difficulty discerning words when there was
background noise and that he believed his hearing acuity had
drastically decreased over the course of this appeal. The
veteran also testified that he did not believe his hearing
ability had decreased since the time of his latest VA
examination in October 2003.
Given the evidence of record, the Board finds that the
veteran has consistently been found to have mild to
moderately-severe sensorineural hearing loss bilaterally even
though his hearing acuity has decreased over the years that
this appeal has been pending. Speech recognition scores of
record are consistent except for the one finding of only 80
percent in the right ear in March 1997. None of the scores
reflect an exceptional pattern of hearing impairment so as to
allow for the use of Table VIA in rating the disability
pursuant to 38 C.F.R. Section 4.86.
In considering the consistent findings, the veteran has a
hearing loss in the right ear with a Numeric Designation of
II and a hearing loss in the left ear with a Numeric
Designation of I as per Table VI of the VA schedule of
ratings. This combination of designations requires the
assignment of a noncompensable evaluation as per Table VII of
38 C.F.R. Section 4.85. The Board notes that even if the one
finding of an 80 percent speech recognition score was used,
the Numeric Designation for right ear hearing loss would be
IV and when this designation is coupled with the I that is
assigned to the left ear, a noncompensable evaluation would
still be assigned as per the schedule of ratings.
The Board certainly appreciates the veteran's assertion that
he believes a higher evaluation should be assigned because of
the obvious decrease in his ability to hear. The VA schedule
of ratings, however, will apply unless there are exceptional
or unusual factors which would render application of the
schedule impractical. See Fisher v. Principi, 4 Vet. App.
57, 60 (1993). 38 C.F.R. Section 3.321(b)(1) provides that,
in exceptional circumstances, where the schedular evaluations
are found to be inadequate, the veteran may be awarded a
rating higher than that encompassed by the schedular
criteria. According to the regulation, an extraschedular
disability rating is warranted upon a finding that "the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization that would
render impractical the application of the regular schedular
standards."
The veteran has not identified any specific factors which may
be considered to be exceptional or unusual in light of VA's
schedule of ratings; the Board has been similarly
unsuccessful.
The veteran has not required frequent periods of
hospitalization for his hearing loss and treatment records
are void of any finding of exceptional limitation due to
hearing loss beyond that contemplated by the schedule of
ratings. Although the Board does not doubt that limitation
caused by difficulty hearing when there is substantial
background noise present has an adverse impact on
employability, loss of industrial capacity is the principal
factor in assigning schedular disability ratings. See 38
C.F.R. §§ 3.321(a) and 4.1. 38 C.F.R. Section 4.1
specifically states: "[g]enerally, the degrees of disability
specified are considered adequate to compensate for
considerable loss of working time from exacerbations or
illnesses proportionate to the severity of the several grades
of disability." See also Moyer v. Derwinski, 2 Vet. App.
289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363
(1993) [noting that the disability rating itself is
recognition that industrial capabilities are impaired].
Consequently, the Board finds that the noncompensable
evaluation currently assigned adequately reflects the
clinically established impairment experienced by the veteran.
Thus, his request for a compensable evaluation is denied.
II. VCAA
The Board has given consideration to the provisions of the
Veterans Claims Assistance Act of 2000 (the VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38
U.S.C.A. § 5100 to 5107 (West 2002)) which includes an
enhanced duty on the part of VA to notify a claimant of the
information and evidence necessary to substantiate a claim
for VA benefits. It also redefines the obligations of VA
with respect to its duty to assist a claimant in the
development of a claim. Regulations implementing the VCAA
have been enacted. See 66 Fed. Reg. 45,620 (August 29, 2001)
(codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159
and 3.326(a)). Also see Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002).
The Board has carefully considered the provisions of the
VCAA, the implementing regulations, the United States Court
of Appeals for the Federal Circuit's (Federal Circuit)
decisions in Disabled American Veterans v. Secretary of
Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) and
Paralyzed Veterans of America v. Secretary of Veterans
Affairs, 345 F. 3d 1334 (Fed. Cir. 2003), which invalidated
portions of the implementing regulations, the Veterans
Benefits Act of 2003, Pub. L. No. 108-183, Section 701, 117
Stat. 2651 (Dec. 2003), and the United States Court of
Appeals for Veteran's Claims (Court) decisions in Pelegrini
v. Principi, 17 Vet. App. 412 (2004) (Pelegrini I), and
Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini
II), which addressed the timing and content of proper VCAA
notice. Following a complete review of the record evidence,
the Board finds, for the reasons expressed immediately below,
that the development of the claim here on appeal has
proceeded in accordance with the law and regulations.
The Court's decisions in both Pelegrini I and Pelegrini II
held, in part, that a VCAA notice, as required by 38 U.S.C.
Section 5103(a), must be provided to a claimant before the
initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits. In this case, the
initial AOJ decision was made in March 1998, long before the
VCAA was enacted, and the VCAA notice was first given to the
veteran in February 2002. Fortunately, the Court
acknowledged in Pelegrini II that some claims were pending at
the time the VCAA was enacted and that proper notice prior to
the initial AOJ decision was impossible. The Court
specifically stated in Pelegrini II that it was not requiring
the voiding or nullification of any AOJ action or decision,
only finding that appellants are entitled to VCAA-content-
complying notice. Thus, the timing of the notice in this
matter does not nullify the rating action upon which this
appeal is based.
VA has a duty under the VCAA to notify an appellant and his
or her representative of any information and evidence needed
to substantiate and complete a claim as well as to inform the
appellant as to whose responsibility it is to obtain the
needed information. The veteran was informed of the
requirements of the VCAA specifically and in detail in a
letter dated in February 2002 and again in October 2003. The
Board finds that the information provided to the veteran
specifically satisfied the requirements of 38 U.S.C.A.
Section 5103 in that he was clearly notified of the evidence
necessary to substantiate his claim and the responsibilities
of VA and the veteran in obtaining evidence. The letters
stated that (1) the evidence needed to substantiate the
veteran's claim was, among other things, evidence that his
service-connected disability had increased in severity, (2)
VA would obtain relevant records from any Federal agency and
relevant records identified by the veteran, and (3) the
veteran is responsible for supplying VA with sufficient
information to obtain relevant records on his behalf and is
ultimately responsible for submitting all relevant evidence
not in the possession of a Federal department or agency. The
Board notes that although the Court in Pelegrini I and again
in Pelegrini II indicated that there was a fourth element of
notification, VA General Counsel rendered a Precedential
Opinion in February 2004, finding that 38 U.S.C. Section
5103(a) does not require VA to seek evidence from a claimant
other than that identified by VA as necessary to substantiate
the claim. See VAOPGCPREC 1-2004 (Feb. 24, 2004). Thus,
under these circumstances, the Board finds that the
notification requirement of the VCAA has been satisfied.
The VCAA provides that VA shall make reasonable efforts to
assist a claimant in obtaining evidence necessary to
substantiate his or her claim unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law provides that the
assistance provided by VA shall include making reasonable
efforts to obtain relevant records that a claimant identifies
and providing a medical examination or obtaining a medical
opinion when such an examination or opinion is necessary to
make a decision on the claim.
After reviewing the record, the Board finds that VA has
complied with the VCAA's duty to assist by aiding the veteran
in obtaining evidence and affording him physical
examinations. It appears that all known and available
records relevant to the issue here addressed on appeal have
been obtained and are associated with the veteran's claims
file, and the veteran does not appear to contend otherwise.
Furthermore, the veteran testified before an RO hearing
officer in August 1998 and before the Board in March 2004.
Thus, the Board finds that VA has done everything reasonably
possible to notify and to assist the veteran and that no
further action is necessary to meet the requirements of the
VCAA and the applicable implementing regulations.
ORDER
A compensable rating for bilateral hearing loss is denied.
REMAND
As noted above, when entitlement to compensation has been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, an
accurate view of the veteran's clinical picture is required
in order to properly evaluate the severity of the veteran's
disabilities.
The record reflects that the veteran has complaints of right
knee instability and was issued a brace by VA to help limit
the impact of the knee going out. The veteran testified
before both the RO hearing officer and the Board that he has
periods when his symptoms are much worse than others, that he
requires medication on a daily basis for arthritic pain, and
that he experiences periodic swelling in the right knee.
The record also reflects that the veteran has complaints of
numbness in the left shin area where skin was grafted. He
testified before the Board that his activities were limited
due to his need to guard the shin area because the skin was
"paper thin." The veteran testified that he did not have
difficulty with the left knee or ankle joints. The Board
notes that service connection was granted in May 1978 for
"residuals cruciate ligament rupture left knee with severe
contusion and tissue loss left lower leg with osteoarthritis
of knee joint", although the service connected disability is
now characterized as "residual left knee and leg injury".
VA examination reports do not include comments on the
veteran's periods of symptom exacerbations, the need for the
right knee brace, nor any limitation caused by numbness and
thin skin of the left shin. X-rays of the right knee
performed in January 1999 show evidence of traumatic
arthritis, however, the veteran complains that x-rays were
not performed at the most recent examination in August 2003
notwithstanding the fact that he has reported that his joint
pain had increased and a knee brace was prescribed between
the two examination dates apparently due to increased
instability in the knee.
In order to properly evaluate the veteran's lower extremity
disabilities, the medical record must be further developed.
The veteran is hereby notified that it is his responsibility
to report for scheduled examinations and to cooperate in the
development of the case, and that the consequences of failure
to report for a VA examination without good cause may include
denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2003).
Therefore, this matter is REMANDED for the following action:
1. The RO should obtain all VA treatment
records, including those reflecting the
prescribing of a right knee brace. The
RO should also obtain any private
treatment records identified by the
veteran. All records obtained should be
associated with the claims folder.
2. Following receipt of treatment
records, the RO should schedule the
veteran for an orthopedic examination to
determine the nature and severity of his
right knee disability. The examiner
should review the claims folder and
describe all functional limitation caused
by right knee disability, including any
additional limitation which may be
present during periods of symptom
exacerbations. The examiner should be
specifically requested to determine if
the veteran has instability of the right
knee and whether he has any additional
disability due to arthritic pain. All
opinions expressed must be supported by
complete rationale.
3. Following receipt of treatment
records, the RO should schedule the
veteran for appropriate examinations
(e.g., neurologic and dermatologic) to
determine the nature and severity of all
aspects of his service-connected left leg
disability. The claims file should be
supplied to the examiners and they are to
be advised to perform all necessary
testing to determine the nature of the
left shin numbness and the effect, if
any, of the numbness and thin skin in
that area on the veteran's ability to
function. The area should be described
in detail with respect to scarring, with
comments made as to the integrity of the
skin and any limitation caused by the
residuals of left leg injury. All
opinions must be supported by complete
rationale.
4. When the development requested has
been completed, the case should again be
reviewed by the RO on the basis of the
additional evidence. The RO should
consider whether separate ratings are
required for all limitations caused by
right knee disability and it should
consider whether different aspects of the
service-connected left leg disability
should be separately rated under rating
criteria for skin disability and/or
neurologic disability as well as
musculoskeletal disability. If the
benefits sought are not granted, the
veteran and his representative should be
furnished a Supplemental Statement of the
Case, and afforded a reasonable
opportunity to respond before the record
is returned to the Board for further
review.
The purpose of this REMAND is to obtain additional
development and the Board does not intimate any opinion as to
the merits of the case, either favorable or unfavorable, at
this time. The veteran is free to submit any additional
evidence and/or argument he desires to have considered in
connection with his current appeal. No action is required of
the veteran until he is notified.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
______________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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